Opinion
No. A06-218.
Filed: June 19, 2007.
Appeal from the District Court, Watonwan County, File No. K9-04-399.
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, MN.
LaMar T. Piper, Watonwan County Attorney, Watonwan County Courthouse, St. James, MN, (for respondent).
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, (for appellant).
Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
In this appeal from first and second-degree criminal-sexual-conduct convictions, appellant argues that he was denied his right to the effective assistance of counsel and that the district court abused its discretion in admitting sexually explicit images of children that were found on computers and a computer diskette in appellant's home. We affirm.
FACTS
In July 2004, appellant Lanny David Green took four-year-old E.Q. with him to a family picnic at a lake. E.Q. is the daughter of Green's longtime friend, S.Q. At the picnic, Green went with E.Q. into a changing shed and helped her change into her bathing suit. After going swimming, Green took E.Q. into the changing shed to change back into her clothes. Six-year-old K.P. was also in the shed.
After the picnic, Green took E.Q. to her grandmother's home. When S.Q. picked up E.Q. and took her home, she noticed that E.Q. seemed "very quiet, very shooken up, very scared." S.Q. asked what was wrong, and E.Q. did not want to talk about it. When S.Q. asked again, E.Q. told her that Green had "opened her up and touched her in the private." S.Q. asked whether Green had touched her on the inside or the outside, and E.Q. "pointed to her inside."
On August 23, 2004, Green provided a voluntary statement to Deputy Sheriff Jeremy Nachreiner. The statement was audiotaped and then transcribed. Green told Nachreiner that when he was in the changing shed getting E.Q. dressed after swimming, he checked her vaginal area to make sure it was clean. Green said that he "did open her up a little bit, but the, you know, I wasn't trying to offend her or anything, I told her . . . I was just gonna check and make sure she was clean, or there wasn't any sand or what ever was last in there could cause a rash." Nachreiner asked, "[D]id you move her lips apart when you went in there or did you just" and Green responded, "Just the top side."
Police obtained a warrant and searched Green's home for sexually explicit material. In Green's dresser, police found a picture of K.P. naked in Green's bathroom. Police also seized several computers and computer diskettes. Investigator Robert Young conducted a forensic examination of the computers and diskettes. On three computers, he found hundreds of sexually explicit images of children from various Internet sites. Young determined that several pornographic sites had been accessed and sexually explicit images viewed and downloaded on one of the computers on the night of August 31, 2004. On that same computer, Young found pictures of Green with E.Q. and K.P. On a diskette that had "keep out" written on it, Young found more sexually explicit images of children, including pictures of K.P. and close-ups of a child's vaginal area. The images on the diskette had been deleted, but Young accessed them with special software.
On September 20, 2004, Green was charged with second-degree criminal sexual conduct. On April 6, 2005, Green went to the police and claimed that he was being "set up." Green denied taking pictures of naked children and implied that his brother's girlfriend had taken the pictures, but he refused to give her name.
On the first day of trial, the state amended the complaint to include a charge of first-degree criminal sexual conduct. The district court denied Green's motion to suppress the pornographic images of children found in his home.
Nachreiner testified that during Green's August 23, 2004 statement, Green first explained that he did not know why he touched E.Q.'s vaginal area, and he later explained that E.Q.'s mother was not a clean person and he used to baby-sit a little girl who got a yeast infection, and he did not want E.Q. to get a rash. During cross-examination of Nachreiner, defense counsel introduced the transcript of Green's August 23, 2004 statement to Nachreiner.
Lisa Smith, a longtime friend of Green's who also knew S.Q., testified that she asked Green about the incident. Smith first testified that Green told her that he just cleaned E.Q. out and she was "guessing with his finger." Smith then read the statement that she made to the police after the incident, which stated that Green told her that "he went to clean [E.Q.] up. He opened her up and cleaned her out, or something like that. I don't know. He said he used his fingers, or finger, or something, to clean her out, you know."
Stephanie Morey, another friend of Green's, testified that Green told her that E.Q. was known to get yeast infections and so, to prevent a yeast infection, he opened her up to make sure there was no sand inside of her. Green's mother told the police that Green told her that he checked E.Q. and she was clean and that he wiped her out. At trial, Green's mother contradicted her statement to the police and stated that Green never told her that he wiped E.Q. out.
Green was convicted of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2002), and second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (2002). Green moved for a new trial. The motion was denied, and Green was sentenced on the first-degree offense. This appeal followed.
DECISION
Ineffective assistance of counsel
At trial, Nachreiner testified about some of what Green told him during the taped statement. While cross-examining Nachreiner, defense counsel introduced a transcript of the taped statement, which included the following exchange between Nachreiner and Green:
[Nachreiner] — Well I guess I, I kind of want to get a better handle on when you say you checked, I know I just, when you say you put your two fingers where, where just exactly did you put your two fingers?
[Green] — Well I, oh I don't know, I suppose in, I can't remember if it was this way or that way, but she was on, she was on the couch and probably this way and just I checked to make sure there wasn't anything you know by the top part. (Emphasis added).
Four pages later in the transcript, Nachreiner asked, "Did you stick your fingers actually in her or you just on the sides?" Green answered, "Just on the sides." During cross-examination, Green acknowledged that the transcript of his recorded statement indicates that when Nachreiner asked Green where exactly he had put his two fingers, Green replied, "Well I, oh I don't know, I suppose in. . . ." The prosecutor then asked Green whether he was referring to something other than E.Q.'s vaginal area when he said, "I suppose in," and Green replied that he "wasn't referring to [E.Q.] at all." The prosecutor then asked Green what he was in, and Green responded, "I wasn't in anything. It was in what direction, you know. I couldn't remember what direction."
After the jury returned its verdict, Green moved for a new trial on the ground that the transcript of his recorded statement incorrectly stated that Green said "I suppose in," when in fact, Green said "I suppose um." The district court denied the motion based on its determination that the jury had heard Green's clarification of his recorded statement and much testimony regarding statements about "opening up" or "cleaning out" that were not made in the context of Green's statement to Nachreiner, and the jury had an opportunity to weigh all of this evidence.
Green argues on appeal that he received ineffective assistance of counsel when his trial counsel introduced the transcript of his taped statement to Nachreiner without first listening to the audiotape to confirm that the transcript was accurate. To demonstrate ineffective assistance of counsel, Green
must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)) (citation omitted). A court may address the two prongs of the test in any order and may dispose of the claim on one prong without analyzing the other. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).
The supreme court has said that under the prejudice prong, a "defendant must show that counsel's errors 'actually' had an adverse effect in that but for the errors the result of the proceeding probably would have been different." Gates, 398 N.W.2d at 562 (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067). In making this determination, the reviewing court considers "the totality of the evidence before the judge or jury." Id. Green bears the burden of proof on a claim of ineffective assistance of counsel. State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003).
Even if we assume that introducing the transcript at trial without first confirming that the transcript was accurate fell below an objective standard of reasonableness, Green is not entitled to relief unless it is reasonably probable that the result of his trial would have been different if counsel had confirmed the accuracy of the transcript. To show that the result of his trial probably would have been different if his counsel had listened to the audiotape, Green must show two things.
He must first show that if counsel had listened to the tape, the error in the transcript probably would have been detected and probably would have been corrected. This must be shown because if no error is apparent on the tape, listening to the tape would not have produced a correction and, therefore, would not have changed the result of the trial. Green does not address this issue on appeal and simply argues as if he has conclusively shown that there was an error in the transcript. He does not cite anything in the record that indicates that the district court determined that the transcript was inaccurate.
At the hearing on Green's motion for a new trial, the audiotape of Green's statement to Nachreiner was marked and received. The district court then took a recess to review the submissions and the arguments of counsel before ruling on the motion. But when the district court returned and announced its ruling on the motion, it did not state whether it had found that the transcript of the taped statement was inaccurate. Consequently, there is no basis for us to conclude on appeal that but for counsel's failure to listen to the audiotape, an error in the transcript probably would have been detected and probably would have been corrected. On the record before us, we cannot determine whether listening to the audiotape would have revealed an error in the transcript.
Furthermore, even if we assume that listening to the tape would have produced a corrected transcript, in order to prevail on his ineffective-assistance claim, Green must also show that there is a reasonable probability that if the transcript had been accurate, the result of his trial would have been different. It is apparent that the disputed portion of the transcript played a role in the trial. During closing argument, the prosecutor referred to the transcript and told the jury that "the most telling evidence of penetration" was Green's statement to Nachreiner, "I suppose in." The prosecutor then said, "When I asked him on the stand, 'In where?', he did not have a good explanation. But you are the judge of that. That's a fact that you must decide." Later, in his rebuttal, the prosecutor again referred to Green's response, "Oh, I don't know, I suppose in[,]" and argued, "I don't think that's murky, or ambiguous, or anything else. I think it is clear." If the transcript had said "um," instead of "in," the prosecutor would not have been able to make these arguments.
But the transcript was not the only evidence of penetration. S.Q. testified that when she saw that E.Q. seemed "very quiet, very shooken up, very scared" and asked E.Q. what was wrong, E.Q. told her that Green "opened her up and touched her in the private." In a statement to police, Smith said that Green told her that "he went to clean [E.Q.] up. He opened her up and cleaned her out, or something like that. I don't know. He said he used his fingers, or finger, or something, to clean her out, you know." And Green's mother told police that Green told her that he wiped E.Q. out. In their trial testimony, Smith and Green's mother contradicted their earlier statements, but "the jury determines the credibility and weight given to the testimony of individual witnesses." State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).
Had the transcript been corrected as Green contends it should have been, the jury would not have had Green's statement, "I suppose in" as additional evidence of penetration. But we are not persuaded that without this additional evidence, the result of the trial probably would have been different. Although Green characterizes the statement as an admission, when considered in the context of the entire trial, the probative value of the statement was not as great as Green contends it was. Green testified at trial that when he made the statement, he was not referring to E.Q. at all; he was referring to the direction of his fingers. Also, the transcript indicates that during his statement to Nachreiner, Green said that his fingers were "[j]ust on the sides." In light of this evidence, a reasonable jury could not simply treat the statement, "I suppose in," as an admission, and the statement was at most an equivocal statement about where Green put his fingers.
If the transcript had said "um," instead of "in," the jury would have been presented with a statement that was even more equivocal, but it is not reasonably probable that after evaluating all of the evidence, the jury would have reached a different verdict. In either situation, the jury would have had to evaluate Green's credibility, and we are not persuaded that the evaluation of Green's credibility turned on the alleged error in the transcript. Green has not met his burden of proving that but for his counsel's failure to listen to the audiotape, the result of his trial would have been different.
Admission of evidence
Green argues that the district court abused its discretion in allowing the state to introduce the sexually explicit images of children found on computers and a computer diskette in Green's home. Rulings on the admission of evidence rest in the sound discretion of the district court and will not be reversed absent an abuse of discretion. State v. Daniels, 361 N.W.2d 819, 828 (Minn. 1985).
The district court ruled that images of children, but not adults, were admissible on the issue of intent; it explained:
Because the Defendant has admitted to law enforcement that he did in fact touch the victim's genitals, his intent in doing so is the only issue seriously at stake in this case. Despite the incendiary impact such images may have on the jury, the pornographic images of children are not likely to confuse the finder of fact or unduly prejudice the Defendant because the Defendant's sexual intent will be the only disputed issue.
Green argues that the district court abused its discretion in admitting this evidence because it was inadmissible character evidence and its probative value was substantially outweighed by its potential to unfairly prejudice the jury. In general, evidence of other acts is not admissible to prove a defendant's character in order to show that the defendant acted in conformity with that character. Minn. R. Evid. 404. Such evidence "may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Minn. R. Evid. 404(b); see also State v. Kennedy, 585 N.W.2d 385, 391 (Minn. 1998) ("While it is important to make plain that such bad act evidence cannot be used to prove action in conformity therewith, it can be used to show a link between the bad act and the charged offense in order to establish a modus operandi, or to refute defendant's allegation that the charged incident was merely a fabrication."). In State v. Bates, 507 N.W.2d 847, 851-52 (Minn.App. 1993), review denied (Minn. Dec. 27, 1993), this court held that evidence of a defendant's sexual interest in young children, while inadmissible to prove character or action in conformity therewith, is relevant to proving the defendant's intent. In Bates, the defendant testified that he did not have sexual contact with the victims and that any touching was accidental. 507 N.W.2d at 852. The Bates court found that "[g]iven that testimony, evidence of [the defendant's] sexual interest in young children was relevant to prove whether an element of the crime was present in his contact with [the victims]." Id. Green did not deny that he touched E.Q., but he denied that he touched her with sexual intent. As in Bates, the images found on Green's computers and the computer diskette are relevant to Green's intent.
Green argues that even if the images were relevant, they should have been excluded because they were too prejudicial. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Minn. R. Evid. 403. This determination rests within the sound discretion of the district court and will be reversed only if the district court abused its discretion. State v. Olkon, 299 N.W.2d 89, 101-02 (Minn. 1980). The district court determined that with respect to Green's sexual intent, the images of nude children were more probative than prejudicial. Although the images may be shocking, they are probative with respect to Green's intent, and we conclude that Green has not shown that the district court abused its discretion in admitting the images. See State v. Durfee, 322 N.W.2d 778, 785-86 (Minn. 1982) (stating that mere fact that photographs vividly bring to jurors the details of a shocking crime so as to tend to incidentally inflame jury does not make photographs inadmissible).
Affirmed.